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IN THE CIRCUIT COURT OF GREENE COUNTY, MISSOURI

COLTON CLAXTON, individually and on
behalf of all others similarly situated,


Plaintiffs,

vs.

Case No. _______________________
KUM & GO, L.C. d/b/a KUM & GO,
Serve: CSC-Lawyers Incorporating Service Co.
221 Bolivar Street
J efferson City, MO 65101
Defendant.

PETITION
COMES NOW, Plaintiff, Colton Claxton, individually and on behalf of all others
similarly situated, and through counsel brings this action against Defendant Kum & Go, L.C.
(hereinafter Defendant). In support of his Petition, Plaintiff states and avers as follows:
General Allegations
1. Representative Plaintiff is an individual residing in Greene County, Missouri.
2. Defendant is a foreign limited liability company registered to do business in the State
of Missouri and may be served through its registered agent, CSC - Lawyers Incorporating
Service Company, at 221 Bolivar Street, J efferson City, Missouri 65101.
3. This Court has jurisdiction over the subject matter of this action, as Defendant
transacts business within the State of Missouri through its operation of numerous gas stations
within Greene County, Missouri, and as Defendants tortious acts alleged within occurred in
Greene County, Missouri.
4. This court has personal jurisdiction over Defendant through Defendants substantial
contact and purposeful availment of the benefits of the State of Missouri, as demonstrated
through Defendants operation of numerous Kum & Go gas stations throughout Greene County,
Missouri.
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5. Venue is proper in this Court, as Greene County is the location where Plaintiff was
first injured, and is the county where Defendants wrongful acts and negligent conduct occurred.
6. On or around J uly 18, 2014, Plaintiff purchased gasoline for his Chevrolet Pickup
truck from Defendants gas station, Kum & Go #473, located at 620 North National Avenue,
Springfield Missouri.
7. Plaintiff purchased gas in the amount of $49.97 from store number 473.
8. Prior to the gas purchase at store number 473, Plaintiff experienced no known
problems with his truck.
9. Immediately after Plaintiffs gas purchase from Kum & Go #473, Plaintiffs truck
began to experience problems, including engine sputtering, and resulted in the truck stalling.
10. Thereafter, on or around J uly 23, 2014, Plaintiffs truck was towed to Vehicles
Unlimited, LLC to determine the cause of the trucks engine problems.
11. The mechanic at Vehicles United, LLC noted that the truck was towed in and had no
oil pressure at idle and poor engine performance.
12. While at Vehicles United, LLC, it was determined that the trucks fuel tank, which
takes unleaded gasoline, had diesel fuel in it.
13. Plaintiffs truck was drained of engine oil and it was then discovered that there was
diesel fuel in the crankcase.
14. The fuel tank of Plaintiffs truck was then drained, and replaced with new unleaded
gas. New oil and a new oil filter were also added to the truck.
15. The oil pressure of Plaintiffs truck was checked again after the oil change, and had
10 PSI at idle while in park.
16. The mechanic determined that the diesel fuel caused damage to the engine internals.
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The electronic control module (ECM) displayed catalytic converter trouble codes.
17. The mechanic suggested engine replacement, as well as catalytic converter and
oxygen sensor replacement to Plaintiffs truck.
18. The estimated cost for the above repairs to Plaintiffs truck was $4,790.52.
19. After contacting Defendant about the bad gasoline purchased at Kum & Go #473,
Plaintiff was offered the amount of $2,961.93 in compensation for the damage done to Plaintiffs
truck as a result of the bad gas.
CLASS ALLEGATIONS
20. Plaintiff re-alleges and incorporates by reference all other paragraphs of this Petition
as if fully set forth herein.
21. Plaintiff brings this action on behalf of himself and all others similarly situated
pursuant to Missouri Rule of Civil Procedure 52.08. The claims asserted are brought on behalf
of a statewide class of consumers.
22. The class is defined and described as follows:
All Missouri citizens and entities that were consumers and purchased for
personal, family, or household purposes, within five years of the date this suit
was filed, unleaded gasoline that contained diesel fuel from Defendants Kum
& Go store number 473. Excluded from the proposed class are Defendant
and its officers, directors, and employees, as well as employees of any of
Defendants subsidiaries, affiliates, successors or assignees. Also excluded
are the immediate family members of the above persons. Also excluded are
counsel and members of the immediate families of counsel for Plaintiff
herein. Also excluded is any trial judge who may preside over this case and
members of the judges immediate family.
23. The requirements for maintaining this action as a class action are satisfied, as set forth
immediately below:
24. The proposed class is so numerous and so geographically dispersed that the individual
joinder of all absent class members is impracticable. While the exact number of absent class
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members is unknown to Plaintiff at this time, it is, upon information and belief, alleged that the
proposed class will include approximately eight hundred members. The requirement of
numerosity is therefore satisfied.
25. The particular members of the class are capable of being described without difficult
managerial or administrative problems from the outset of this litigation. The members of the
class are readily identifiable from the information and records in the possession or control of
Defendant.
26. Common questions of law or fact exist as to all proposed class members and
predominate over any questions which affect only individual members of the proposed class.
27. In fact, the wrongs suffered and remedies sought by Plaintiff and the other members
of the class are premised upon a common and illegal course of conduct perpetrated by
Defendant.
28. The only material difference between the claims of the individual class members is
the exact monetary amount to which each class member is entitled.
29. The common questions of law or fact include, but are not limited to the following:
a. whether Defendant charged Plaintiff and members of the proposed Class for the
purchase of unleaded gasoline;
b. whether the gasoline actually purchased by Plaintiff and members of the proposed
Class contained diesel fuel;
c. whether Defendant misrepresented that the gasoline purchased by Plaintiff and
members of the proposed Class was unleaded gasoline;
d. whether Defendants marketing and labeling of the gasoline purchased by Plaintiff
and members of the proposed Class was false, misleading, deceptive, or unfair;
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e. whether Defendant failed to disclose material facts to the Plaintiff and members of
the proposed Class regarding the gasoline advertised as unleaded;
f. whether Defendant concealed from Plaintiff and members of the proposed Class that
the purchased gasoline contained diesel fuel;
g. whether Plaintiff and members of the proposed Class are entitled to monetary relief
and punitive damages and the amount and nature of such relief;
h. whether Plaintiff and members of the proposed Class are entitled to an award of
reasonable attorneys fees and the costs of suit; and
i. whether Defendant breached its implied warranty of merchantability;
j. whether Defendant was negligent;
k. whether Defendant is strictly liable for its defective product;
l. whether Defendant breached its warranty of fitness for a particular purpose; and
m. whether Defendant breached its contract.
30. The claims of Plaintiff are typical of the claims of the proposed class.
31. Plaintiff will fairly and adequately represent the interests of the members of the class.
Plaintiff has no interest adverse to the interests of the members of the class. Plaintiff has retained
competent attorneys who have experience in class action litigation.
32. A class action is a superior method for the fair and efficient adjudication of this
controversy. The adjudication of a separate action by individual members of the class would
create a risk of (a) inconsistent or varying adjudications with respect to individual members of
the class; or (b) adjudications with respect to individual members of the class which would as a
practical matter be dispositive of the interests of the other members not parties to the
adjudications or substantially impair or impede their ability to protect their interests.
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33. Questions of law or fact common to the members of the class predominate over any
questions affecting only individual members. There is no special interest in the members of the
class individually controlling the prosecution of separate actions; the damages sustained by
individual class members may be relatively small; and the expense and burden of individual
litigation make it impossible for the class members individually to address the wrongs done to
them.
34. There will be no difficulty managing this lawsuit as a class action in this Court.
Furthermore, Defendant transacts substantial business in the State of Missouri and will therefore
not be prejudiced or inconvenienced by the maintenance of the action in this forum.
35. Certification of a class under Rule 52.08 and Section 407.025, RSMo. is appropriate
in that Plaintiff and class members seek monetary damages and common questions predominate
over any individual questions and a class action is superior for the fair and efficient adjudication
of this controversy.
36. A class action will cause an orderly and expeditious administration of class members
claims and economies of time, effort and expense will be fostered and uniformity of decisions
will be ensured.
37. Moreover, the individual class members are likely to be unaware of their rights and
not in a position (either through experience or financially) to commence individual litigation
against Defendant.
38. Alternatively, certification of class under Rule 52.08 is appropriate because
inconsistent or varying adjudications with respect to individual members of the class would
establish incompatible standards of conduct for the Defendant, or adjudications with respect to
individual members of the Class as a practical matter would be dispositive of the interests of the
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other members not parties to the adjudications or would substantially impair or impede their
ability to protect their interests.
WHEREFORE, Plaintiff and Class request that the Court enter judgment in their favor
and against Defendant as follows:
a. Ordering that this action be maintained as a class action pursuant to Rule 52.08 and
that the following class be certified:
All Missouri citizens and entities that were consumers and purchased for
personal, family, or household purposes, within five years of the date this
suit was filed, unleaded gasoline that contained diesel fuel from
Defendants Kum & Go store number 473. Excluded from the proposed
class are Defendant and its officers, directors, and employees, as well as
employees of any of Defendants subsidiaries, affiliates, successors or
assignees. Also excluded are the immediate family members of the above
persons. Also excluded are counsel and members of the immediate
families of counsel for Plaintiff herein. Also excluded is any trial judge
who may preside over this case and members of the judges immediate
family.
b. Allowing the certified class to include all persons described therein with causes of
action against the Defendant for a period beginning five (5) years prior to the filing of
Plaintiffs Petition up to and including the date of Plaintiffs Petition;
c. Certifying Plaintiff as class representative and appointing Plaintiffs counsel as
counsel for the Class;
d. Awarding Plaintiff and Class restitution of the monies Defendant wrongfully acquired
by its wrongful and illegal conduct;
e. Awarding Plaintiff and Class punitive damages as provided by law;
f. Awarding Plaintiff and Class attorneys reasonable attorney fees; and
g. Awarding Plaintiff and Class such other and further relief as may be just and proper.
Count I MMPA Violation
39. Plaintiff re-alleges and incorporates by reference all other paragraphs of this Petition
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as if fully set forth herein.
40. On or around J uly 18, 2014, Defendant was in the business of selling and advertising
for sale certain merchandise or retail products in trade or commerce within the State of Missouri,
to wit: unleaded gasoline.
41. On or around J uly 18, 2014, via signs and billboards on the premises of Kum & Go
#473, Defendant advertised, or otherwise related to Plaintiff and proposed class members, that
the product being advertised was unleaded gasoline.
42. In fact, however, and as Defendant knew or should have known at the time, the
product advertised as unleaded gasoline contained diesel fuel, which is unsuitable for vehicles
designed to operate on unleaded gasoline.
43. Defendants representation that the product was unleaded gasoline was, therefore,
false and made knowingly by Defendant, or without knowledge as to its truth or falsity, and was
subsequently a deception, fraud, false pretense, false promise, and misrepresentation as described
in 407.020, RSMo, and constitutes a violation of 407.020, RSMo., which prohibits such
practices.
44. 6. Pleading alternatively, Defendants representation that the product was unleaded
gasoline constituted the omission or suppression of a material fact in violation of the provisions
of 407.020, RSMo. in that the gasoline purchased by Plaintiff and the proposed class contained
diesel fuel.
45. Defendants representation that the product was unleaded gasoline was material to
Plaintiff and proposed class members decision to purchase the products.
46. Plaintiff relied on Defendants representation to his detriment and suffered damages
in that Plaintiffs truck experienced engine problems, including sputtering, with the result that the
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truck stalled and had to be towed for mechanic services; Plaintiff will have to replace the engine
to his truck due to the gasoline purchased at Kum & Go #473.
47. Proposed class members also relied upon Defendants representation to their
detriment and suffered similar damages as those of Plaintiff.
48. Defendants conduct was intentional, wrongful, and malicious and entitles Plaintiff
and proposed class members to the recovery of punitive damages as authorized by statute at
407.025.1, RSMo.
WHEREFORE, Plaintiff and proposed class members pray for judgment against
Defendant in such amount as is allowable by law, for punitive damages, for attorney fees as
provided for by statute, and for such other relief as the Court deems just and proper in the
circumstances.
Count II Breach of Implied Warranty of Merchantability
49. Plaintiff re-alleges and incorporates by reference all other paragraphs of this Petition
as if fully set forth herein.
50. At all times relevant to this Petition, Defendant is and was in the business of selling
gasoline without substantial change in the condition in which such gasoline was manufactured
and sold to consumers, knowing that its gasoline products would be sold to persons whose
vehicles required a specific type of gasoline to operate.
51. Defendant labels the gasoline according to type before delivering it for sale to
consumers.
52. Defendant is a merchant as to unleaded gasoline, and as such impliedly warranted that
the gasoline advertised as unleaded purchased by Plaintiff and proposed class members was
merchantable and fit for the ordinary purposes for which it was to be used
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53. Additionally, by asserting in its advertisements that the gasoline was unleaded,
Defendant expressly warranted the condition of the gasoline. Plaintiff and proposed class
members relied on Defendants express and implied warranties in purchasing and using the
unleaded gasoline to operate their vehicles.
54. On or around J uly 18, 2014, Defendant sold and delivered to Plaintiff and proposed
class members adulterated gasoline advertised as unleaded that contained diesel fuel, while
knowing or should have known that such gasoline was to be sold to the general public for
specific use in vehicles that operate only on unleaded gasoline.
55. Plaintiff and proposed class members were unable to inspect or test the gasoline they
received from Defendant prior to purchase.
56. After Plaintiff and proposed class members purchased the gasoline advertised as
unleaded from Defendant, Plaintiff and proposed class members operated their vehicles using
such gasoline. Plaintiff and proposed class members relied on Defendants implied warranty of
merchantability in operating their vehicles with the purported unleaded gas.
57. Plaintiff and proposed class members vehicles immediately began to experience
problems, including engine sputtering, with resulting vehicle stalling and incurred expenses
including costs for towing and repair of their vehicles.
58. Defendant breached its implied warranty of merchantability in that the unleaded
gasoline it sold to consumers contained diesel fuel, which made the gasoline unwholesome and
unfit for consumers to use in their vehicles and was unreasonably dangerous to the consumers.
59. The injuries to and impairment of Plaintiff and proposed class members vehicles,
described above, proximately resulted from Defendants breach of the implied warranty of
merchantability.
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60. Prior to the purchase of unleaded gasoline from Defendant, Plaintiff and proposed
class members vehicles did not experience the type of problems described herein.
WHEREFORE, Plaintiff and proposed class members pray this Court enter judgment
against Defendant in an amount sufficient to compensate them for their damages, for their costs
incurred herein, and for such other relief as the Court deems just and proper.
Count III Negligence
61. Plaintiff re-alleges and incorporates by reference all other paragraphs of this Petition
as if fully set forth herein.
62. Defendant was, on or about J uly 18, 2014 a dealer and vendor of unleaded gasoline to
the general public.
63. As such, Defendant owed a duty to consumers purchasing its unleaded gasoline to
deliver safe and unadulterated unleaded gasoline.
64. Defendant sold a quantity of adulterated unleaded gasoline to Plaintiff and proposed
class members, and at the time of the purchase and sale, Defendant represented that gasoline
was, in fact, unleaded gasoline and was fit for vehicles operating on unleaded gasoline, and was
free from all foreign and injurious substances.
65. Defendant breached its duty to consumers, Plaintiff, and proposed class members
when, due to the negligence of Defendant, its servants, or agents, the unleaded gasoline sold by
Defendant contained a foreign substance; namely, diesel fuel.
66. Alternatively, if Plaintiff is unable to prove specific acts of negligence, Plaintiff and
proposed class members rely on the doctrine of res ipsa loquitur and allege that the sale and
delivery of the gasoline in question was within the exclusive control of the Defendant; that the
Plaintiff and proposed class members had no means of ascertaining the method or manner in
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which the gasoline was inspected, sold, or delivered, nor did Plaintiff and proposed class
members have anything to do with the inspection, sale or delivery of the gasoline; that in the
course of the ordinary events and the exercise of ordinary care of the unleaded gasoline sold to
Plaintiff and proposed class members, the unleaded gasoline would not have contained anything
injurious to the vehicles of Plaintiff and proposed class members, but for the negligence of the
Defendant.
67. Plaintiff and proposed class members sustained damage to their vehicles and incurred
repair expenses as a direct and proximate result of purchasing and using the gasoline advertised
and sold by Defendant as unleaded.
WHEREFORE, Plaintiff and proposed class members pray this Court enter judgment
against Defendant in an amount sufficient to compensate them for their damages, for their costs
incurred herein, and for such other relief as the Court deems just and proper.
Count IV Strict Products Liability
68. Plaintiff re-alleges and incorporates by reference all other paragraphs of this Petition
as if fully set forth herein.
69. The gasoline sold to Plaintiff and proposed class members by Defendant was
defective, which made it unfit for use in vehicles requiring unleaded gasoline to operate and
made it unreasonably dangerous for use by the Plaintiff and proposed class members.
70. Use of the unreasonably dangerous unleaded gasoline by Plaintiff and proposed class
members lead to vehicle engine problems and was a producing cause of Plaintiff and proposed
class members injuries and damages as previously described in an amount within the
jurisdictional limits of the court.
WHEREFORE, Plaintiff and proposed class members pray this Court enter judgment
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against Defendant in an amount sufficient to compensate them for their damages, for their costs
incurred herein, and for such other relief as the Court deems just and proper.
Count V Breach of Warranty of Fitness for a Particular Purpose
71. Plaintiff re-alleges and incorporates by reference all other paragraphs of this Petition
as if fully set forth herein.
72. At all times relevant to this Petition, Defendant is and was in the business of selling
gasoline without substantial change in the condition in which such gasoline was manufactured
and sold to consumers, knowing that its gasoline products would be sold to persons whose
vehicles required a specific type of gasoline to operate.
73. Defendant knew at the time of contracting, that Plaintiff and proposed class members
purchase of the gasoline was intended for a particular purpose; specifically, to use the unleaded
gasoline to operate vehicles that require unleaded gasoline only.
74. At the time of sale, Defendant knew that Plaintiff and proposed class members relied
upon the sellers skill or judgment in the selection of the gasoline as unleaded.
75. The gasoline purchased by Plaintiff and proposed class members was unfit for the
purpose.
76. As previously described, Plaintiff and proposed class members suffered a loss or
injury to their vehicles proximately caused by the unfitness of the gasoline for the particular
purpose.
WHEREFORE, Plaintiff and proposed class members pray this Court enter judgment
against Defendant in an amount sufficient to compensate them for their damages, for their costs
incurred herein, and for such other relief as the Court deems just and proper.

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Count VI Breach of Contract
77. On or around J uly 18, 2014, Plaintiff and proposed class members entered into a
contact with Defendant whereby Defendant would supply a certain amount of unleaded gasoline
and Plaintiff and proposed class members would make payment for such gasoline.
78. The consideration paid by Plaintiff was approximately $49.97 for the unleaded
gasoline.
79. Upon information and belief, proposed class members paid similar amounts for their
unleaded gasoline.
80. Defendant failed to provide unleaded gasoline to Plaintiff and proposed class
members, but instead provided gasoline that contained diesel fuel.
81. As such, Defendant breached its contract with Plaintiff and proposed class members.
82. Through certain media outlets, Defendant acknowledged its breach of contract by
setting up an insurance claims process for those who purchased unleaded gasoline.
83. For Plaintiffs truck, the estimated cost for repair was $4,790.52.
84. Defendant offered Plaintiff an amount of $2,961.93 through its insurance claims
process.
85. The offered amount by Defendant does not remedy the damage caused to Plaintiff by
Defendants breach.
86. Thus, Defendant has failed and refused to remedy its breach of contract, as a result
whereof, Plaintiff and proposed class members were obliged to expend money to remedy some
of the defects resulting from the contract at their own expense.
WHEREFORE, Plaintiff and proposed class members request judgment against
Defendant in an amount which is fair and reasonable, for costs, and for such other relief as the
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Court deems just and proper.
JURY DEMAND
For each of the Counts of this Petition, Plaintiff hereby demands a jury trial on all issues
so triable.

DOUGLAS, HAUN & HEIDEMANN, P.C.
111 West Broadway, P.O. Box 117
Bolivar, Missouri 65613
Telephone: (417) 326-5261
Facsimile: (417) 326-2845
cheidemann@bolivarlaw.com
nduncan@bolivarlaw.com
jfields@bolivarlaw.com

/s/Craig R. Heidemann
By_________________________________
Craig R. Heidemann
Missouri Bar No. 42778
Nathan A. Duncan
Missouri Bar No. 60186
J ennifer N. Fields
Missouri Bar No. 65899
Attorneys for Plaintiff



DHH No. 22347-001
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